Appeal from the Circuit Court of Lake County; the Hon. Robert
K. McQueen, Judge, presiding.
PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After trial by jury defendant, Joe Charleston, was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1) and sentenced to a term of 28 years' imprisonment. He appeals, contending the trial court erred by: (1) excluding evidence of decedent's propensity for violence; (2) precluding defendant from impeaching a witness; (3) permitting the State to cross-examine an expert witness regarding a testing error he made in another case; and (4) that defendant was not proved guilty beyond a reasonable doubt.
Shortly after 7 p.m. on November 30, 1981, in the Ace of Clubs tavern located in Waukegan, Kenneth Smith, age 19 years, was killed by a single gunshot wound in the chest. At the time of the shooting the tavern was crowded with about 60 patrons, but descriptions of the occurrence by the witnesses varied to a certain extent.
Michael Smith, a brother of decedent, testified that he was talking to Buford Brown near the back of the tavern; he heard his brother Kenneth shout and saw Kenneth and defendant standing face to face arguing. Kenneth said, "What is you going to do: shoot me, or what?" Defendant reached under his coat and produced a black .38 revolver in his right hand, pointed it at Kenneth and shot him in the chest. Defendant then waved the gun and instructed the crowd not to move, fired a shot in the air and ran out of the door.
Buford Brown testified he heard an argument between decedent and defendant and saw defendant pull a gun from underneath his coat and shoot decedent. On cross-examination, Brown testified he did not believe Michael Smith was present during the incident, but came in later.
Thomas Jenkins testified he came out of the restroom and saw defendant and decedent arguing. Defendant told decedent he had bumped him and asked if decedent was trying to knock him down. Decedent apologized, but defendant said, "I'll blow you away." Defendant dropped the beer he held in his hand and slapped decedent across the face. Defendant then produced a pistol and stuck it in decedent's stomach. Jenkins testified he was frightened and went back into the washroom until it was safe to come out. He heard two shots and came out, seeing that the barroom was then empty except for the body on the floor.
Defendant also testified, stating he was standing at the bar drinking beer when decedent pushed into him, swore at him and said he knew defendant as a man who formerly went with decedent's cousin. The man called defendant names and pulled a gun from under his coat. Defendant testified he grabbed decedent's wrist with both hands and during the struggle the gun went off while still in decedent's hand. He fell and defendant pulled the gun from decedent's hand and shot into the ceiling to back off the crowd. He ran out of the tavern and arrived at the North Chicago police station, two to three miles away, 20 minutes later, where he told officers he had been involved in a shooting and gave a statement. Defendant testified he had the gun when he ran out of the building, but did not know what became of it as he was frightened and nervous. Ownership of the gun was never established nor was it located.
Jurlene Brown testified defendant was drinking his beer when decedent came up and started an argument threatening defendant's life. Decedent reached for his left side and defendant grabbed his wrist; they struggled and a gun went off. The witness stated she did not actually see the gun in anyone's hand until after the first shot, at which time defendant had it.
Ronnie Garland also testified to the occurrence, stating defendant and decedent had a little argument and decedent made a move with his left hand. Garland then heard a shot, but his view was obstructed and he didn't see the gun until after decedent was shot and defendant was then holding it.
EXCLUSION OF EVIDENCE OF DECEDENT'S PROPENSITY FOR VIOLENCE
• 1 Prior to trial, the State moved in limine to bar defendant from introducing any evidence of or commenting on decedent's record of arrests, convictions or his reputation in the community. As a basis for the motion, the State noted that defendant in statements to police officers said he did not know the decedent "relative to the reasonableness of his action in defending himself" and cited People v. Wolski (1980), 83 Ill. App.3d 17, 403 N.E.2d 528. At the hearing of the motion, defendant's counsel suggested a theory of self-defense may be offered in trial, that defendant would testify he knew decedent generally in the community, and that "he had quite a series of run-ins with the law, and these led to his propensity for violence and for anti-social conduct." The trial court granted the motion in limine, as there was no showing defendant knew the decedent's reputation, and barred mention of it until such time as evidence of defendant's knowledge was produced in trial.
Defendant contends that where evidence of the deceased's propensity for violence and aggression helps corroborate defendant's testimony that decedent was the initial aggressor, defendant's knowledge of that evidence is immaterial and the trial court erred in excluding it. He relies upon People v. Gossett (1983), 115 Ill. App.3d 655, 451 N.E.2d 280, appeal denied (1983), 96 Ill.2d 545, People v. Buchanan (1980), 91 Ill. App.3d 13, 16, 414 N.E.2d 262, and People v. Stombaugh (1972), 52 Ill.2d 130, 284 N.E.2d 640. The State responds the issue is waived as defendant failed to make an offer of proof as to the victim's prior record of violent behavior and the only suggestion of such conduct in the record was defendant's attorney's statement decedent had "run-ins with the law."
In People v. Lynch (1984), 104 Ill.2d 194, 470 N.E.2d 1018, decided after the trial of this case, our supreme court considered the varied opinions of the appellate court on this issue and resolved it. The court determined that evidence of a victim's aggressive and violent character may be offered to support a theory of self-defense in two ways: first, where defendant's knowledge of the victim's violent tendencies may have affected defendant's perception of and reaction to the victim's behavior and second, where evidence of the victim's propensity for violence tends to support the defendant's version of the facts where there are conflicting accounts of what happened. The court noted that while the first basis for such evidence necessarily requires knowledge by defendant of the victim's violent nature, the second basis does not. It held that "when the theory of self-defense is raised, the victim's ...